Can I claim my daughter on taxes if my ex doesn’t?

During my divorce, I found out that my ex didn’t file his taxes the first year apart because he knew he owed. I filed 2010 taxes and claimed my daughter, and the judge never did anything about it. During the court hearing, the judge ordered that I get to claim my daughter on even years, and he gets to claim her on odd years, provided he is up to date on child support. When I filed my 2011 taxes, he wasn’t, so I claimed her. I will claim her next spring for the 2012 taxes. Now, come 2013, if he is caught up on child support (which he is now and will be if he happens to keep this job–payments are garnished), he will technically be able to claim her. However, if he isn’t filing taxes anyway, can I? For example, come April 15th, can I call and find out if her SSN was filed, and if not, claim her myself? I do contract work where my taxes don’t come out, and even when I claim her, I break even (slight refund, no payment). If I don’t get to claim her, I’d have to pay out thousands in taxes. It would make a huge difference. What could I do? (And no, “asking” my ex is not an option, haha!)

10 Answers

Does the child live with you? In that case, you can claim her every year no matter what the judge said. The IRS does not care about agreements like this, they only care who the child lives with for the majority of the nights in the year. Otherwise the non-custodial parent would need a form 8332 signed by the custodian parent. Even with this form, the non-custodial parent cannot claim EIC etc.

You need to understand that the IRS is a higher authority than the local court, so you have to follow IRS rules first. In other words, the court can’t order you to violate tax laws, just like the judge can’t give you permission to go shoot bank tellers and empty out the vault because local judges don’t have authority over federal laws.

The IRS says that you are the custodial parent if your child lives with you over half the year and spends more nights with you than the other parent. As the custodial parent, you get ALL the tax benefits EVERY year, unless you give them away to the non-custodial parent by signing form 8332. If you sign form 8332 you are giving away ONLY the child’s dependency exemption and the child tax credit (including the refundable portion which is called the additional child tax credit). The custodial parent ALWAYS keeps the right to claim earned income credit, head of household status, and daycare credits if applicable to their situation.

So, it sounds like the court has ordered you to sign form 8332 on even numbered years IF he is current on his child support. If you refuse to sign form 8332, the court can hold you in contempt which is a very serious offense, and they could even rewrite the custody/child support arrangement since you aren’t living up to your end of the deal.

Keep in mind that the IRS will catch up to him sooner or later. When they do, they will require him to file those old tax returns at which time he will want to claim your daughter. When he does, it will trigger an IRS investigation into the duplicate claim for that year and you will need to be prepared to defend yourself to the IRS and prove that your claim was valid. If he takes you to court over it, you’ll need to prove that he was behind on payments.

My advice is not to mess with it. If he’s current on taxes for an odd numbered year (meaning the 2013 taxes you will file in early 2014), then give him an 8332 form and don’t claim the dependency exemption or child tax credit. Whether he files right away or waits 3 years, he is still legally entitled to those tax benefits WHEN he does file.

If you sign form 8332, and you have proof that your daughter lives with you then you can still claim head of household, EIC, and childcare credit. Any competent tax pro can help you with this, or any software program will get it right if you answer the questions EXACTLY as the software asks.

If your daughter lived with you for over half the year you can claim her whether her father did or not. In case of a dispute, unless you gave the father an IRS Form 8332 or document stating the same thing as that form you would get the exemption. What the court orders is irrelevant to IRS, it is where the child lives.

You do understand, right, that when you are the custodial parent, even when you have signed –or were supposed to have signed– the 8332, you STILL get to claim HOH, child care and EIC, right? The 8332 only means you have given up the exemption and the child tax credit.

Your idea of calling the IRS and asking if he’s already claimed your daughter is worthless. No fully trained IRS customer service representative is going to tell you anything about someone else’s return. Even if you just go ahead and claim her, your hubby only needs to take you back to court and have you charged with contempt. (If you previously signed the 8332, he doesn’t even need to do, he just files and attaches the form.)

As far as your taxes, if you owe, you need to start making quarterly estimated taxes.

the parent with whom the child spends the majority ‘nites’ with is the parent to claim the child
that parent can sign a waiver, form 8332, to allow the other parent to do so if there is a situation that would merit this permission
if he didn’t file taxes he is without a doubt behind in child support and you would obviously be aware of that
if he didn’t file, of course her SSN should not already be claimed

And also asking the IRS will just be a waste of your time for this purpose also.
Because they will NOT tell you any thing about another taxpayer income tax return at all.
QUALIFY to claim meet all of the rules that have to be met for this purpose.
CUSTODIAL parent MAJORITY of nights during the tax year that the child lived in that parents home with that the parent maintained for them to live in would be the one that would qualify for the QC dependency exemption on their correctly completed 1040 income tax return and all of the other available tax CREDITS when they would have the REQUIRED QUALIFYING income for that purpose.
Written records and proof of the 183 NIGHTS in the tax year 2011 and for 2012 it will have to be for 184 nights for this purpose of claiming the child on the income tax return as the CUSTODIAL parent.

Refer to Publication 501, Exemptions, Standard Deduction, and Filing Information or Publication 504, Divorced or Separated Individuals, for more information on the special rule for children of divorced or separated parents.
Fill out and file your 1040 income tax return correctly and completely make your copy and sign the other copy to send to the correct IRS address at that time for processing.
Hope that you find the above enclosed information useful. 06/13/2012

Go ahead and claim her. The way the court order is written, it’s not valid and won’t be accepted by the IRS anyway if it ends up you both claim her and the IRS has to get involved. To be valid it must be without condition – the “if he’s up to date on child support” kills it.

Judges, courts, etc do not control who can claim or not claim. The IRS has its own set of rules that trump all else; visit IRS.GOV and download or order a free PUB 17 to read and look over the flow charts that determine who can claim dependents and so on. Basic determination is who does the child reside with as custodial parent? Support? Blah, blah, blah…………………………..